EFTA01279893.pdf

EXHIBIT "B" DECLARATION CHARLOTTE 298034v7 SDNY_GM_00030536 EFTA_00141154 EFTA01279893  DECLARATION OF CONDOMINIUM FOR THE RATCLIFFE April 15, 2002 FILE COPY RUED RJR R204TROION one 0 mare 513/ Oa TUE 1 l i..,2C -.) Book /3540 Ace 303 — nun NC Flri ivOlni A. dna% meta op unitalellunti Odom NCOral Drawn By and Mail To: Bobby D. Hinson, Esq. Womble Carlyle Sandridge & Rice, PLLC 3300 One First Union Center 301 South College Street Charlotte, North Carolina 28202 CHARLOTTE 298167v10 CONFIDENTIAL SONse_GM_00030537 EFTA_00I 411155 EFTA01279894 STATE OF NORTH CAROLINA DECLARATION OF CONDOMINIUM FOR THE RATCLIFFE COUNTY OF MECICLENBURG This Declaration of Condominium (this "Declaration") is made this 15th day of April, 2002, by THE RATCLIFFE, LLC, a North Carolina Limited liability company ("Declarant"), pursuant to the provisions of Chapter 47C of the North Carolina General Statutes, entitled the "North Carolina Condominium Act." STATEMENT OF PURPOSE Declarant is the owner of certain real property consisting of fee simple ownership of certain air rights, together with perpetual support and other easements ("Real Property") over a parcel of land containing a total of approximately 0.6477 acres located within the 400 block of South Tryon Street, in Charlotte, Mecklenburg County, North Carolina, such Real Property being more particularly described on Exhibit A attached hereto. Declarant has constructed on the Real Property one (1) building (the "Condominium Building"), containing a total of fifty-seven (57) residential condominium units. Declarant has also constructed, amenities on the Real Property such as common corridors, trash receptacles and other improvements. Declarant desires to submit the Real Property, the Condominium Building and any other improvements located on the Real Property (collectively, the "Property") to the terms and provisions of the North Carolina Condominium Act and this Declaration. In addition, Declarant has deemed it desirable to create a nonprofit, incorporated owners' association which will be delegated and assigned powers of maintaining and administering the common areas and facilities within the Property, of administering and enforcing the covenants and restrictions created in this Declaration, and of levying, collecting and disbursing the assessments and charges created in this Declaration, and of taking any steps or performing any acts deemed necessary or appropriate to preserve the value of the condominium units within the Property and to promote the recreation, health, safety and welfare of the unit owners. In order to accomplish the foregoing, Declarant is entering into this Declaration. NOW, THEREFORE, Declarant hereby declares that all of the Property shall be held, transferred, sold, conveyed, occupied and used subject to the following covenants, conditions, easements, uses, limitations, obligations, and restrictions, all of which arc declared and agreed to be in furtherance of a plan for the division of the Property into condominium units, and shall be deemed to run with the land to both burden and benefit Declarant, its successors and assigns, and any person or entity acquiring or owning any interest in the Property and their successors, heirs and assigns. CHARLOT1E 29&167v10 CONFIDENTIAL SDNY_GM_00030538 EFTA_00141 156 EFTA01279895  ARTICLE I DEFINITIONS Unless it is plainly evident from the context that a different meaning is intended, the following terms, words, and phrases shall have the following meanings when used in this Declaration: Section 1.1 "Association" shall mean and refer to The Ratcliffe Condominium Owners Association, Inc., a corporation organized and existing under the North Carolina Non-Profit Corporation Act pursuant to and in accordance with this Declaration, the Bylaws, and the North Carolina Condominium Act. Section 1.2 "Building" shall mean and refer to the ten story building located upon the top level of the Parking Facility, in which the ground floor and first floor are anticipated to be used for retail uses, the second floor is anticipated to be used for office use and the third through tenth floors comprise the Condominium Building and will be used for residential purposes. Section 1.3 "Bylaws" shall mean and refer to the bylaws of the Association, a copy of which is attached hereto as Exhibit C and all amendments to such bylaws which may from time to time be adopted. Section 1.4 "Common Elements" shall mean and refer to all portions of the Property other than the Units, as depicted on the Plan; and as more particularly described in Section 5.1 of this Declaration, including, without limitation, any easement rights appurtenant to the Property pursuant to the ROA. Section 1.5 "Common Elements Interest" shall mean and refer to the undivided percentage interest in the Common Elements allocated to each Unit, as set forth on Exhibit B attached hereto. The Common Elements Interest shall be used to allocate the division of proceeds, if any, resulting from any casualty loss or eminent domain proceedings and, each Unit's share of Common Expenses, but shall not be used to determine voting rights in the Association which shall be allocated equally among ail Units. Section 1.6 "Common Expenses" shall mean and refer to any and all expenditures made by or financial liabilities of the Association, together with any allocations to reserves, pursuant to and in accordance with this Declaration, the Bylaws, and the North Carolina Condominium Act. Section 1.7 "Condominium" shall mean and refer to The Ratcliffe, as established by the submission of the Property to the terms of the North Carolina Condominium Act by this Declaration. Section 1.8 "Condominium Building" shall mean and refer to floors three through ten of the Building which shall be constructed wholly within the air rights constituting a portion of the Real Property which contains a total of fifty-seven (57) Units, and such other Units as may be CHARLOTTE 298167A° 2 CONFIDENTIAL SDNY_GM_00030539 EFTA_00141157 EFTA01279896 created by Declarant by subdivision ofUnits in accordance with Declarant's development right set forth in Section 6.1(f) below, together with certain Common Elements as described in the Plans. Section 1.9 "Condominium Documents" shall mean and refer to this Declaration, the Articles of Incorporation of the Association,. the Bylaws, and the rules and regulations governing the use of the Condominium, as the foregoing maybe -amended and Supplemented from time to time, and all attachments and exhibits thereto. Section 1.10 "Condominium Parking Facility" shall refer to those portions of the Parking Facility that will be available exclusively to Declarant, Owners and their permittees, as described in Section 3.1 of this Declaration. Section 1.11 "Declarant" shall mean and refer to The Ratcliffe, LLC, a North Carolina limited liability company. Following recordation of a document transferring to another person or entity all or some of the Special Declarant Rights, pursuant to Section 6.2 of this Declaration, the term "Declarant" also shall mean and refer to that transferee. Section 1.12 "Declarant Control Period" shall mean and refer to the period commencing on the date hereof and continuing until the earlier of (i) one hundred twenty (120) days after conveyance of seventy-five percent (75%) of the Units to an Owner other than Declarant, (ii) two (2) years after Declarant ceases to offer Units for sale in the ordinary course of business; or (iii) the date upon which Declarant voluntarily surrenders control of the Condominium to the Association. Section 1.13 "Declaration" shall mean and refer to this Declaration of Condominium, as it may be amended from time to time in the future. Section 1.14 "Lxecutive_Board" or "Board" shall mean and refer to the governing body from time to time of the Association as constituted in accordance with the Articles of Incorporation of the Association, the Bylaws and the North Carolina Condominium Act. Section 1.15 "Land" shall mean and refer to that certain real property constituting approximately 1.9802 acres located within the 400 block of South Tryon Street, Charlotte, North Carolina and as more particularly described in Exhibit 1) attached hereto, on which the Parking Facility and the Building will be constructed. Section 1.16 "Limited Common Elements" shall mean and refer to those portions of the Common Elements allocated by this Declaration, or the terms of N.C. Gen. Stat. §47C-2-102(2) or (4), for the exclusive use and benefit of one or more, but fewer than all, of the Units, to the exclusion of all other Units, as more fully described in Section 5.2 of this Declaration, and as depicted on the Plans. Section 1.17 "Mortgage" shall mean and refer to a mortgage or deed of trust constituting a first lien on a Unit. CHARLOTTE 298167v10 3 CONFIDENTIAL SDNY_GM_00030540 EFTA_OO1411158 EFTA01279897  Section 1.18 "Mortgagee" shall mean and refer to the owner and holder of a Mortgage that has notified the Association in writing of its name and address, and that it holds a Mortgage on a Unit. Such notice will be deemed to include a request that the Mortgagee be given the notices and other rights described in Article XVI. Section 1.19 "North Carolina Condominium Act" shall mean and refer to Chapter 47C of the North Carolina General Statutes. Section 1.20 "Owner" shall mean and refer to the record owner, whether one or more persons or entities, of fee simple title to any Unit but shall exclude those persons or entities having an interest in any Unit as merely security for the payment or performance of an obligation. Section 1.21 "Parking Facility" shall refer to the five (5) level underground parking garage to be constructed under the Building, a portion of which (the Condominium Parking Facility) is reserved for the exclusive use of the Owners and their permittees, and the remainder of which is anticipated, but not required, to be open to the general public by a combination of monthly rental and first-come, first served basis. Section 1.22 "plans" shall mean and refer collectively to the surveys, plans and specifications of the Condominium Building and Property prepared by R. B. Pharr & Associates, P.A. and Fischero McGuire Krueger Architects, P A. and recorded under the name of the Condominium in the Unit Ownership File under the file number stamped or written on the first page of this Declaration in the Office of the Register of Deeds of Mecklenburg County. The Plans are hereby incorporated herein by reference as if the same were attached to this Declaration. Section 1.23 "Property, shall mean and refer to the Real Property, the Condominium Building and all other improvements and structures located on or within the Real Property; and all easements, rights and appurtenances belonging or appertaining to the Real Property. Section 1.24 "Real Property" shall mean and refer to the real property subject to this Declaration, which includes fee ownership in air rights together with perpetual support and other easements, exclusive of any improvements located thereon or incorporated therein (except to the extent that, with regard to appurtenant easements, such easements relate specifically to identified improvements), all of which are more particularly described on Exhibit A attached hereto. Section 1.25 "Reciprocal Operating Agreement" or "ROA" shall mean that certain Reciprocal Operating Agreement recorded in Book 13492 at Page 044 of the Mecklenburg County Public Registry by and between the Declarant, the owner of the Land and the owner of those portions of the remainder of the Building not owned by Declarant, for the purposes of providing certain rights and responsibilities governing use by the Declarant and the owner of the Land and the commercial improvements, and their successors and permittees, of the subgrade support, access, parking and other easements established in and created by that certain Deed of the Real Property to Declarant recorded in Book 13492 at Page 001 of the Mecklenburg County Public Registry. Among other things, the ROA governs the construction and use of the Parking Facility and other common areas within the commercial portions of the Building. CHARLOTTE 298167140 4 CONFIDENTIAL SDNY_GM_00030541 EFTA_00141159 EFTA01279898 References in this Agreement to the Reciprocal Operating Agreement or the ROA shall be deemed to refer to such Reciprocal Operating Agreement as well as to any easements or restrictions created by the above described deed and which are appurtenant to or burden the Real Property. Section 1.26 • "Special Declarant Rights" shall mean the rights reserved for the benefit of Declarant in the Condominium Documents, as more particularly described in Article VI of this Declaration. Section 1.27 "Unit" shall mean and refer to a portion of the Property, as more particularly described in Article IV of this Declaration, that is the subject of individual ownership by an Owner. In addition, the definitions set forth in N.C. Gen. Stat. §47C-1-103 are incorporated in this Declaration by reference, and the terms defined therein shall have the meanings set forth therein when used in this Declaration or the Condominium Documents, unless those terms are expressly defined otherwise in this Declaration or unless it is plainly evident from the context that a different meaning is intended. ARTICLE II DESIGNATION OF CONDOMINIUM Section 2.1 Location and Designation. The Real Property within which the Condominium Building and other improvements are located is located entirely in Mecklenburg County, North Carolina, and is more particularly described on Exhibit A attached hereto and incorporated herein by reference. The Property is subjected to the terms of the North Carolina Condominium Act by this Declaration. Section 2.2 Name. The name of the Condominium is The Ratcliffe. ARTICLE 111 DESCRIPTION OF BUILDING AND CONDOMI Section 3.1 Building and Condominium. The existing Building is a ten (10) story post- tension concrete building, with brick veneer and Exterior Insulation and Finish System exterior. The first three levels of the Building, including the ground floor, first floor and second floor, are anticipated to be used for commercial purposes, including offices and retail and will not be included as a part of the Condominium (except for easement rights for support and access through such areas). Only those portions of the Building which are constructed within the air rights comprising a portion of the Real Property and consisting of floors three through ten of the Building, and appurtenant easements associated therewith, are subject to the terms of this Declaration. The first floor of the Building will contain an exclusive elevator lobby, with secured entry, providing access to the Condominium and the Condominium Parking Facility. The Condominium Building contains fifty-seven (57) Units, accessible by way of the exclusive elevator CHARLOTTE 298167v10 5 CONFIDENTIAL SDNY_GM_00030542 EFTA_OO1411116O EFTA01279899 lobby, and internal corridors on each floor. The Units are divided into one story flats and two story residence and penthouse units. The first two floors of the Condominium Building (floors three and four of the Building) will consist of two story residence Units. The top two floors of the Condominium Building (floors nine and ten of the Building) will consist of two story penthouse Units. The remaining floors will consist of single story flats. Some Units will have allocated to thein,4 Storage 'closet -an - Limited Common Element as set forth in the Plans: 'The - Building, which includes the Condominium Building, is constructed on top of a five (5) level underground parking garage ("Parking Facility") within which is located the Condominium Parking Facility. The Condominium Parking Facility contains at least one parking space per Unit as well as storage closets, as shown on the Plans. The parking spaces and storage closets in the Parking Facility will be allocated to Units as Limited Common Elements by reference to such parking space or storage closet in the initial deed of a unit from the Declarant, or in a subsequent dced from the Declarant to an Owner. Vehicular ingress and egress to the Condominium Parking Facility is through the remainder of the Parking Facility and by means of a non-exclusive easement for the benefit of Declarant and Owners (in common with the retail and officer users). The remaining portion of the Parking Facility is also available to Declarant and Owners on a non- exclusive basis for parking, subject to the terms of the ROA. The Condominium Building and Condominium Parking Facility are more particularly described in the Plans, which show all particulars of the same. The Plans contain a certification by C. Clark Neilson, a North Carolina Registered Land Surveyor, and Mark A. Fishero, a North Carolina Licensed Architect, that the Plans contain all the information required by N.C. Gen. Stat. §47C-2-109. Section 3.2 Location of Condominium Building and Condominium Parking Facility. The location and dimensions of the Condominium Building, the exclusive elevator lobby on the first floor of the Building and the Condominium Parking Facility are shown on the Plans. ARTICLE IV DESCRIPTION OF UNITS Section 4.1 Units. The location of existing Units within the Condominium Building and their dimensions are shown on the Plans. There are a total of fifty-seven (57) Units in the Condominium Building. The identifying number for each Unit is set forth on Exhibit B and on the Plans. Pursuant to Article VI of this Declaration, Declarant reserves a development right to subdivide existing Units so that the maximum number of Units that may be created is sixty-three (63). If Declarant exercises its development right to subdivide Units and create additional Units and Limited Common Elements, the Supplementary Declaration required by Section 6.3 of this Declaration shall contain a new Exhibit B and revised set of Plans, which shall contain new identifying numbers of the Units thereby created. Section 4.2 Unit Boundaries. The boundaries of each Unit are as follows: (a) Upper Boundary: The horizontal plane of the top surface of the wallboard in the ceilings within the Unit. As depicted on the Plans, the ceilings in certain portions of CHARLOTTE 2%16700 6 CONFIDENTIAL SDNY_GM_00030543 EFTA_001 41161 EFTA01279900  the Unit may be at different elevations; in such cases, the upper boundary of such Unit shall not be a single horizontal plane, but shall vary with the differing finished ceiling elevations within different portions of the Unit. (b) Lower Boundary: The horizontal plane of the top surface of the subflooring or concrete slab within each Unit. For Those Units containing two levels connected by an interior stairway, the definitions of upper and lower boundaries set forth herein apply with respect to each level within the Unit, the horizontal structural elements dividing the levels of a given Unit are part of the Common Elements. (c) Vertical Boundaries: The vertical planes which include the back surface of the wallboard of all walls bounding the Unit, extended to intersections with each other, and with the upper and lower boundaries. As provided in N.C. Gen. Stat. §47C-2-102Q), all lath, flooring, wallboard, plasterboard, plaster, paneling, tiles, wallpaper, paint, finished flooring and any other materials constituting any part of the finished surfaces of the perimeter walls, floors, and ceilings are part of the Unit. Furthermore, all interior walls (except load bearing walls), partitions, fixtures, appliances, cabinets and other facilities or improvements lying completely within the boundaries of a Unit shall be a part of such Unit. As provided in N.C. Gen. Stat. §47C-2-102(2), if any chute, flue, duct, wire, pipe for water or sewer, conduit, load bearing wall, load bearing column, or any other fixture lies partially within and partially outside the designated boundaries of a Unit, any portion thereof serving only that Unit shall be a Limited Common Element allocated to that Unit, as provided in Section 5.2 below, and any portion thereof serving more than one Unit, or any portion of the Common Elements, shall be a Common Element. Furthermore, any wall that separates a Unit from a storage closet which is a Limited Common Element of that Unit shall be deemed a Limited Common Element of such Unit. ARTICLE V COMMON ELEMENTS Section 5.1 Common Elements. The Common Elements include all portions of the Condominium that are not part of the Units, including without limitation: (a) The Real Property. (b) All improvements located within the Real Property outside of the Units, including without limitation the Limited Common Elements described in Section 5.2 below, as well as the interior stairwells and interior corridors within the Condominium Building. (d) The foundations, roofs, columns, girders, beams, supports, exterior and interior load-bearing walls, floors within and between Units, and all other structural elements of the Condominium Building. CHARLOTTE 213167vID 7 CONFIDENTIAL SDNY_GM_00030544 EFTA_00 I 41162 EFTA01279901  (e) Any public connections and facilities for utility services serving the Condominium Building and located within the Real Property that are not owned by the public utility or municipal agency providing such services, until owned or maintained by the public utility or municipal agency providing such service. (f) All tangible personal property required for the operation and maintenance of the Condominium that may be owned by the Association. (g) The appurtenant easement areas (including without limitation the Condominium Parking Facility and exclusive elevator lobby) described as a part of the Real Property for use by the Owners and their guests and invitees, in accordance with the ROA. Section 5.2 Limited Common Elements. The Limited Common Elements shall be composed of the following: (a) Those portions of any chute, flue, duct, wire, pipe for water or sewer, conduit, bearing wall, bearing column, or any other fixture lying partially within and partially outside the designated boundaries of a Unit, but serving exclusively that Unit, which shall be Limited Common Elements allocated exclusively to that Unit. (b) Any shutters, awnings, window boxes, non-structural components of balconies and terraces and all exterior doors and windows or other fixtures designed to serve a single Unit, but located outside that Unit's boundaries, which shall be Limited Common Elements allocated exclusively to that Unit. (c) Any portions of the heating, ventilating, and air conditioning systems, including fans, compressors, return air grills and thermostats, whether located inside or located outside the designated boundaries of a Unit, which shall be Limited Common Elements allocated exclusively to the Unit or Units that they serve. (d) At least one (1) parking space located in the Condominium Parking Facility shall be allocated to each Unit as a Limited Common Element of that Unit. In addition, some Units shall be allocated a storage closet located on the floor of the Condominium Building on which the Unit is located, or in the Condominium Parking Facility which shall be a Limited Common Element of such Unit, all as identified on the Plans and as allocated in the initial deed from Declarant to Unit Owner. The cleanliness and orderliness of the Limited Common Elements (excluding the Condominium Parking Facility) shall be the responsibility of the individual Owner having the right to the use and enjoyment of such Limited Common Elements. Notwithstanding any other provisions of this Declaration, or any provision of the Bylaws or the North Carolina CHARLOTTE 258 I67v10 CONFIDENTIAL SDNY_GM_00030545 EFTA_00 1 41 163 EFTA01279902 Condominium Act, the obligation for maintenance, repair, or replacement of any portions of the heating, ventilating, and air conditioning systems that are Limited Common Elements shall be the sole responsibility of the Owners of the Units to which such Limited Common Elements are allocated. References in this Declaration to "Common Elements" shall include Limited Common Elements unless the context clearly indicates otherwise.. . The allocation of use of Limited Common Elements to the Units as provided for in this Declaration shall not be altered without the unanimous consent of the Owners whose Units are affected. The Condominium Parking Facility shall be maintained by the owner of the Parking Facility in conjunction with maintenance of the remainder of the Parking Facility. The Association shall be responsible for a proportional share of the costs of maintenance of the Parking Facility as described in the ROA, which costs shall be part of the Common Expense of the Association. Section 5.3 Undivided Interests of Owners in Common Elements. The percentage interest in the Common Elements allocated to each Unit shall be the Common Elements Interest for that Unit as set forth on exhibit B attached hereto. Except as set forth in Section 9.5(a) and Section 6.3, the Common Elements Interest allocated to each Unit shall not be changed except with the unanimous consent of all the Owners of all the Units and with the consent of all the Mortgagees. In particular, if Declarant exercises its development right to subdivide Units and create additional Units and Limited Common Elements, Declarant shall have the right to adjust the Common Elements Interest for each Unit in accordance with the following formula: the Common Elements Interest allocated to each Unit is based on the heated square footage of that Unit, as shown on the Plans, calculated by dividing the heated square footage of that Unit by the total heated square footage of all Units, and by multiplying the quotient so calculated by one hundred (100). These Supplementary Declarations required by Section 6.3 of this Declaration shall contain a new allocation of Common Elements Interest calculated in accordance with the foregoing formula which shall be substituted for Exhibit B attached to this Declaration in the event that Declarant exercises this development right. Section 5.4 Maintenance of The Association, either directly or through enforcement of rights under the ROA, shall be responsible for the maintenance and repair of all Common Elements, including the Condominium Parking Facility and structural elements of balconies and terraces, but excluding other Limited Common Elements and maintenance or repairs caused by the negligence or intentional misconduct of any Owner, his agents, invitees or family members, which shall be the responsibility of that Owner. ARTICLE VI SPECIAL DECLARANT RIGHTS Section 6.1 Special Declarant Rights. Special Declarant Rights are those rights reserved for the benefit of Declarant in the Condominium Documents, and shall include without limitation the following rights: (a) The right to complete any improvements shown on the Plans. CHARLOTTE 298167v10 9 CONFIDENTIAL SDNY_GM_00030546 EFTA_00141 164 EFTA01279903  (b) The right to maintain a sales offices, a model unit and signs advertising the Condominium. (c) The right to use easements through the Common Elements for the purpose of completing construction._ (d) The right to appoint or remove officers of the Association or members of the Executive Board during the Declarant Control Period. (e) The right to exercise any other rights granted to or reserved by Declarant in the Condominium Documents, the ROA or the North Carolina Condominium Act. (f) Until the third (311) anniversary of the date of recording of this Declaration, the development right to subdivide Units into separate Units so long as the maximum number of Units does not exceed sixty-three (63). (g) The right to allocate parking spaces and storage closets located in the Condominium Parking Facility to specific units as Limited Common Elements in the initial deed of conveyance of a Unit by Declarant or in a subsequent deed from Declarant to an Owner. Section 6.2 Transfer of Special Declarant Rights. Declarant may transfer any Special Declarant Rights created or reserved under the Condominium Documents to any person or entity, by an instrument evidencing the transfer duly recorded in the Office of the Register of Deeds for Mecklenburg County. The instrument shall not be effective unless it is executed by the transferor and the transferee. Upon the transfer of any Special Declarant Rights, the liability of the transferor and the transferee shall be as set forth in N.C. Gen. Stat. §47C-3-I04. Section 6.3 Supplementary Declaration. In order to exercise the development tight reserved under Section 6.1(0 above, Declarant shall execute and record an amendment to this Declaration in accordance with N.C. Gen. Stat. §47C-2-110 (a "Supplementary Declaration"). Any Supplementary Declaration executed and recorded by Declarant to exercise the development right of subdividing Units and creating new Units and Limited Common Elements shall contain an amendment or supplement to the Plans identifying the new Units and Limited Common Elements so created, as well as in an amendment to Exhibit B attached to this Declaration, assigning and identifying numbers to each new Unit and reallocating the Common Elements Interest among all Units in accordance with the formula set forth in Section 5.3 of this Declaration. Declarant may exercise the development right to subdivide Units within the three (3) year periods specified in Section 6.1(f) above, without the consent or approval of the Association, or any other Owner or Mortgagee, by executing and recording a Supplementary Declaration in accordance with this Section 6.3. CHARLOTTE 2981.67v10 10 CONFIDENTIAL SDNY_GM_00030547 EFTA_00141165 EFTA01279904  ARTICLE VII RESTRICTIONS ON US Section 7.1 Residential Use. All Units shall be used for residential purposes only. Notwithstanding_ the foregoing, Declarant may maintain any Unit owned by Declarant as a sales office or model Unit. As used in this Declaration., the restriction on use ofUnits for residential - purposes shall not exclude use of such Units owned by Wachovia Bank, National Association, its affiliates or subsidiaries, or any successor by merger or acquisition, ("Wachovia") as executive residences for temporary use by employees or guests of Wachovia. Section 7.2 Nuisance. No obnoxious, offensive or unlawful activity shall be conducted within any Unit, or on or about the Common Elements, nor shall anything be done thereon or therein which may be or which may become an annoyance or nuisance to the other Owners, or endanger the health and safety of any Owner. Nothing shall be done or kept in any Unit or in the Common Elements that will result in the termination or an increase in the premium for, the policy of property insurance for the Condominium. Section 7.3 ProhibitionsonMcsmonMements. The Common Elements (other than storage closets) shall not be used for the storage of personal property of any kind. Stairs, entrances, lobbies, hallways, sidewalks, yards, driveways, and parking areas shall not be obstructed in any way, or used for other than their intended purposes. In general, no activity shall be carried on nor conditions maintained by any Owner either in his Unit or upon the Common Elements which detracts from the appearance of the Condominium. All Owners, their family members, guests and invitees, shall abide by reasonable rules and regulations promulgated by the Association for use of the elevators, lobby and corridors which constitute a part of the Common Area. Specifically, but without limitation, the Association may designate one of the elevators as the primary elevator for use of non-passenger service and may designate certain times during which any elevators may be used for transport of freight, including moving of furniture, which shall in any way delay the use of the elevators for ordinary passenger service. Section 7.4 Garbage. Trash, garbage and other waste shall be kept in sanitary containers within each Unit, and deposited only in the common trash receptacles located within the Common Elements. Section 7.5 Parking. No Owner or any employee, agent, or invitee of any Owner, shall park, store or keep any vehicle within the Condominium Parking Facility except wholly within those portions of the Common Elements designated as parking areas by the Association, and in particular shall not block any entrances, drive aisles, and fire lanes. The parking space allotted to each Unit may be used only by the Owner of the Unit to which that parking space is allocated as a Limited Common Element, and his guests and invitees. No boat, boat trailer, motor home, travel trailer, camper or other recreational vehicle may be stored within the Condominium Parking Facility at any time. No significant automobile repair shall be allowed in the parking areas within the Condominium Parking Facility. The Association shall have the right to tow any vehicle in violation of this Section 7.5 at its owner's expense. Other than the specific parking spaces allocated to the Units as Limited Common Elements in deeds from the Declarant during the CHARLOTTE 298167v10 11 CONFIDENTIAL SDNY_GM_00030548 EFTA_OOR11166 EFTA01279905 Declarant Control Period, the remaining parking spaces in the Condominium Parking Facility, if any, shall be Common Elements available for use of all Owners, their family members, guests and invitees pursuant to the terms and conditions of the ROA and any rules and regulations for such Parking Facility as promulgated by the owner of the Parking Facility from time to time, in its sole discretion. Section 7.6 Leases Of Units. My lease of a Unit or portion thereof shall be in writing and shall provide that the terms of the lease shall be subject in all respects to the Condominium Documents and that any failure by the lessee to comply with all of the terms of such Condominium Documents shall constitute a default under the lease. No Unit may be leased for a period shorter than one (1) year; provided, however, that any Units which arc purchased by Wachovia, its affiliates or subsidiaries, may be used by Wachovia, or any successor by merger or acquisition, as executive residences for temporary use by employees or guests of Wachovia. This privilege is personal to Wachovia and its successor by merger or acquisition only, and shall not be transferable or assignable. Section 7.7 No Timeshares. No interest in any Unit may be subjected to a time share program, as that term is defined in N.C. Gen. Stat. §93A-41(10). Section 7.8 Animals. No animals, livestock, or poultry of any kind shall be kept or maintained in the Condominium or in any Unit except that small common household pets may be kept or maintained in each Unit, provided they are not kept or maintained for commercial purposes and provided that no Owner may have more than two (2) such pets at any one time (excluding fish). No pet shall be permitted upon the Common Elements unless carried or leashed by a person that can control the pet. All pets shall be controlled so as not to create a nuisance or unreasonable disturbance (including loud and excessive barking) in the Condominium. Pets shall not be permitted to defecate in the Common Elements, and each Owner shall clean up immediately after his pet if an accident occurs. All pets shall be registered or inoculated as required by law. Each Owner shall hold the Association harmless from any claim resulting from any action of his pet, and shall repair at his expense any damage to the Common Elements caused by his pet. If any Owner violates these rules more than twice in any twelve (12) month period, then in addition to any fines provided in the Bylaws, the Association shall have the right to require the Owner to remove the pet permanently from the Condominium upon not less than ten (10) days' written notice. Section 7.9 Utilities. Total electrical usage in any Unit shall not exceed the capacity of the circuits for that Unit as labeled on the circuit breaker boxes, and no electrical device causing overloading of the standard circuits may be used in any Unit without permission of the Association. All clothes dryers will have lint filters, and all stove hoods will have grease screens, and such screens and filters shall be used at all times and kept clean, and in good order and repair, by the Owner of the Unit in which they are located. The Condominium will have a single meter for water and sanitary sewer service provided to the Condominium and the costs of such water and sewer service shall be deemed a Common Expense. The Association shall have the right to separately meter or submeter water and sanitary sewer service to any or all Units and costs of such utility service shall be allocated to the Unit for which such meter applies. CHARLOTTE 298167v10 12 CONFIDENTIAL SDNY_GM_00030549 EFTA_0011411167 EFTA01279906  Section 7.10 Floor Load. There shall be no floor load in any Unit in excess of forty (40) pounds per square foot, unless an engineering determination of the floor load capacity in the area of heavy use is approved by the Association. • Section 7.11 Windows. - No curtains or draperies shall be installed or hung in any window of any Unit unless they have a white lining or backing on the side exposed to the window. No storm windows shall be installed in any Unit. Section 7.12 Architectural Control. No building, landscaping, wall or other structure (other than a satellite dish or antenna permitted by Section 7.16) shall be commenced, erected or maintained upon the Condominium, nor shall any exterior addition to or change or alteration to either the Unit or the Common Elements be made, until the plans and specification showing the nature, kind, shape, height, materials and location of the same shall have been submitted to and approved in writing as to harmony of external design and location in relation to surrounding structures and topography by the Association. Section 7.13 Signs and Flags. No signs or other advertising devices shall be displayed on or about the exterior of any Unit, or in the Common Elements, except for a name plate or sign not exceeding twenty-four (24) square inches in area on the main door to each Unit. Notwithstanding the foregoing, Declarant shall have the right to maintain within the Condominium advertising signs during the Declarant Control Period, provided those signs comply with applicable governmental regulations. Further, no pole or other device for the display of decorative flags shall be erected or displayed on or about the exterior of any Unit, or in the Common Elements unless approved in advance by the Association. In the event that the Association approves installation of a pole or device for the display of decorative flags, any such flags displayed by an Owner shall be in good taste and shall not contain lewd or offensive displays or material. Section 7.14 Maintenance. The Owner of each Unit is responsible for maintaining his Unit as well as the Limited Common Elements appurtenant thereto (excluding the Condominium Parking Facility and the structural elements of balconies and terraces). Each Owner shall keep his respective Unit and its appurtenant Limited Common Elements in a clean, neat and orderly condition and in a good state of maintenance and repair. If an Owner fails to comply with the standards or requirements of the Association relative thereto, the Association shall assess the defaulting Owner the cost thereof and shall undertake to effect said compliance. Section 7.15 Rules and Regulations. In addition to the use restrictions set forth in this Declaration, reasonable rules and regulations governing the use of the Property may be made and amended from time to time by the Association. Copies of such regulations and amendments thereto shall be posted prominently prior to their effective date, and shall be furnished by the Association to all Owners upon request. Specifically, and not by way of limitation, the Association shall have the right to make reasonable rules and regulations governing the use of the Condominium Parking Facility, the easements described and governed by the ROA, the elevators, lobby, common corridors and, subject to the terms and conditions of the ROA, access to the roof CHARLOTTE 298167v10 13 CONFIDENTIAL S0NY_GM_00030550 EFTA_00141168 EFTA01279907 of the Building. No Owner shall be entitled to penetrate the roof of the Building without first providing detailed plans and specifications for the reason of any such penetration to the Association and obtaining prior written approval from the Association and, if applicable, the Mixed Use Owner. The Association shall have the right to approve any contractors working on the roof of the Building or any other Common Elements. Owners shall not be entitled to make any changes, alterations or revisions to the Common Elements without prior written approval from the Association. Section 7.16 Satellite Dishes and Antennas. Unless otherwise required by law, no exterior satellite dish in excess of one meter in diameter may be placed on the exterior of any Unit or in the Common Elements without the prior written approval of the Executive Board, which may be withheld in its sole discretion. The location of any exterior television antenna, or satellite dish less than one meter in diameter, shall be subject to the reasonable prior approval of the Executive Board, taking into account the appropriate standards set forth in the regulations of the Federal Communications Commission, and to the extent reasonably practical, the Executive Board may require that such antenna or satellite dish be screened from public view. Prior to installing the antenna or satellite dish, the Owner shall furnish to the Executive Board a copy of his installation plans. The Association shall have the right to perform any portion of the installation work at the expense of the Owner, or to require that any portion of the work be performed by contractors designated by the Executive Board. In no event shall such antenna or satellite dish be installed on the roof unless required by law or otherwise approved by the Executive Board in its sole discretion, and then, any roof penetration that is required to install any antenna or satellite dish shall be performed only by the roofing contractor designated by the Executive Board. The Owner shall also be responsible for any damage caused by the removal of the antenna or satellite dish, including the sealing of conduits or other roof penetrations. Any Owner installing an ant